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In “The Hobby Lobby Moment,” an excellent article in the latest Harvard Law Review, Paul Horwitz analyses the Supreme Court decision not so much in terms of the immediate legal arguments for the decision but rather of the historical moment. He rightly indicates that the contests which shape such decisions are not simply based upon legal precedent but represent broader cultural conflicts. In this case, the issue is the increasingly contested importance of religious freedom as a factor in public life.

Horwitz is surely correct that the bringing of the case, the decision, and the ferocity of discussion both before and after, have been influenced by at least two social factors. The first is the issue of LGBTQ rights, which were not directly involved in the specific substance of the case but which could be effected by the precedents set regarding an employer’s power to allow personal religious principles to determine employee rights. The second and more subtle context is that of changing attitudes to the marketplace. Horwitz argues that, whereas the marketplace has often been a refuge from the culture wars and the arena in which those issues are typically set aside, it has now become a major arena of conflict.

On this last point, I suspect Horwitz presents too straightforward a view of the history of the politics of the marketplace. It has been a field of combat for previous generations, as in the Montgomery Bus Boycott of 1955–56 or the Southern Baptist call for an embargo on Disney in 1997. What is significant now is that the battle is being prosecuted not by those who supply and those who buy, but by the government and by powerful lobby groups, and being decided in the law courts.

The escalation of marketplace conflict is related to the emergence of sexuality as the political issue of the day, combined with a psychologized (and thus subjective and selective) view of oppression. The result is that traditional relationships between personal beliefs and life in the public square are rapidly breaking down. The marketplace is not simply becoming more contested, as Horwitz rightly argues; it is also expanding its prerogatives into every sphere of life. Thus, when personal religious convictions collide with the morality of this expanding marketplace, then so much the worse for religious convictions.

This expanding marketplace has not become a field of combat through government overreach so much as through the pervasive influence of the entertainment industry and social media. Twitter and sitcoms have the ability to construct the impression of overwhelming moral consensus on whatever is the issue of the day. This manufactured moral consensus then becomes a necessary precondition for participation in any aspect of the marketplace, from entertainment to education. That is why celebrity speakers feel the need to withdraw from speaking for Catholic organizations upon making the shocking discovery that they are (mirabile dictu) committed to Catholic moral teaching.

Horwitz also speaks of things being utterable and unutterable. Once an argument is unutterable it is, as he notes, indecent and consequently carries no real weight in legal discussions. Yet this indecency is not a matter of legal precedent or case law; it is one of contemporary social acceptability or plausibility. Now, those pushing for the transformation of the marketplace are proving adept at monopolizing the rhetoric of virtue. Thus, they deprive dissenters of a plausible language with which to express their disagreement with the new normal. Indeed, I suspect that the LGBTQ movement’s powerful commandeering the language of freedom, equality, human rights, happiness, and justice will soon mean that it has a practical monopoly on the capacity to express publicly acceptable piety. That means that the case against redefining the nature of human sexuality will sound utterly indecent in the public square. More worryingly, that will make it unutterable in a legal context.

R. R. Reno has used the term dhimmi to describe the social status who hold the traditional line on matters such as personhood, sexuality, and abortion. If the basic thesis of Horwitz’s article is correct, and if I am correct that the contested marketplace is being universalized, then Reno may well prove to have been an optimist.  For this would mean that traditional morality is being definitively transferred from the category of the utterable to the unutterable, and that even arguments for mere dhimmitude might therefore soon be indecent.

Carl R. Trueman is Paul Woolley Professor of Church History at Westminster Theological Seminary.

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More on: Hobby Lobby, LGBTQ, Law, dhimma

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